The Two-Way

6:49 pm

Fri April 4, 2014

In this image taken from video and released by SITE Intelligence Group, Anwar al-Awlaki speaks in a video message posted on radical websites in November, 2010.

SITE Intelligence GroupAP

A federal judge dismissed (pdf) a case that challenged the Obama administration's targeted killing of three Americans in Yemen.

Nasser Al-Awlaki sued administration officials personally for the killing of his son and al-Qaida cleric Anwar Al-Awlaki, his grandson and another American. His lawyers argued the administration violated the targets' constitutional right to due process and protection from unlawful search and seizures.

Al-Awlaki was killed by a drone strike in 2011. He had never been publicly charged with a crime, but U.S. officials said he was tied to plots against the U.S. and played a key role in al-Qaida in the Arabian Peninsula.

Samir Khan, who once was the editor of the jihadi magazine Inspire, died alongside al-Awlaki. Abdulrahman, al-Awlaki's 16-year-old son, was killed a few weeks later in a separate strike.

Judge Rosemary M. Collyer said the suit "raises fundamental issues regarding constitutional principles, and it is not easy to answer."

However, based on precedent, she granted the Obama administration's motion to dismiss the case.

"Government lawyers argue that allowing the case to proceed against senior military officials and the former leaders of the Pentagon and the CIA would interfere with executive branch prerogatives and subject the defendants to second-guessing of sensitive military and intelligence decision-making.

"Brian Hauck, arguing for the Justice Department, pointed out that decisions on targeting "are made at the highest levels of the executive branch, with robust consultation with Congress."

"But the judge didn't sound convinced. "No, no, no, no," Collyer said. "The executive is not an effective check on the executive when it comes to individual constitutional rights."

"Advocates for the Awlaki family say the U.S. government violated the victims' constitutional rights under the Fourth and Fifth Amendments to the Constitution — which prohibit unlawful search and seizure and deprivation of life and liberty without due process of law.

Collyer's decision, while dense, is a good read. She explains that al-Awlaki — and only him — has "'plausible' procedural and substantive due process claim."

So the question on the table is whether his dad can sue federal officials who were part of the decision-making team in civil court.

A Supreme Court decision in Bivens v. Six Unknown Federal Narcotics Agents sets the precedent for when that can happen. As SCOTUSblog explains, it's in rare circumstances.

Here's a key passage from the Collyer decision:

"In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Anwar Al- Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief."

Circuit courts, Collyer explains, have held that when testing relief based on Bivens "civilian courts should not interfere with the military chain of command."

"Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into 'the heart of executive and military planning and deliberation,'" Collyer concludes.